LAW 1503 Lecture Notes - Lecture 3: Australian Consumer Law, Ebay, Reasonable Time
23 May 2018
School
Department
Course
Professor
Terms cases
Express terms
Incorporation of written terms
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
Reaffirmed L'Estrange v Graucob.Signature= legal
effect of reading and accepting contract regardless of
if the party did so. Effect of signature cancels the need
to give reasonable and sufficient notice of displayed
and delivered terms on
eBay International AG v Creative
Eletroi aeptae. Clikig I aept or like
buttons which link to Ts&Cs has same effect of
signature
But terms must be accessible and cannot be vague
Display/ delivered terms
Causer v Browne
where the document is given, the recipient must
reasonably expect it to contain terms. (It is not
enough to just hand it over, terms must be
highlighted, could have a sig sayig, look at ters
o doket.).
eBay International v Creative
unusual conditions- seller must do what reasonably
necessary to bring the terms to the other party's
attention: display term on webpage; refer to them
enough times to put user on notice that they will be
bound by those terms
Additional terms received by the customer after the
purchase is completed not binding
Interfoto Picture Library Ltd v Stiletto Visual
Programmes Ltd
Onerous, unusual terms must be in such a form that
they would be brought to the attention of the party to
be bound.
Implied Terms
Fact
Codelfa Construction Pty Ltd v SRA
Applied BP steps- otig i the * or ature of parties
relationship suggested the need to imply a term
specifying that hours could change was so obvious
that it went without saying. C* actually said opposite-
was strict about workable hours and
Law
Liverpool City Council v Irwin
common law implied terms into certain definite
classes of contracts when necessary to fill a gap
Sale of Goods Act 1895 (SA) ss 12–15
implied terms as to title, sale by description or
sample, merchantable quality, fitness for purpose.
Whether parties can exclude terms depends on each
statute
Australian Consumer Law s 3, Pt 3-2 Div 1, Pt 5-4
guarantees businesses cannot exclude when
contracting with consumers Pt 3-2 Div 1
Definition of consumer s3:
Sub-div A- Goods
Guarantee of title passing to consumer s 51(1)
Acceptable quality, fit for common use s
54(2)(a)
Acceptable quality, fit for disclosed purpose s
55 (goods can be used for uncommon
purpose provided it is disclosed by consumer
before sale)
Express warranties must be honoured by
manufacturers and suppliers s 59
Sub-div B- Services
Due care and skill (what has been represented
to the consumer, and what is reasonable to
expect) s 60
Reasonable time for supply (depends on what
service it is) s 62
Remedies relating to guarantees pt 5-4
Major v minor failure
Minor failure that can be remedied: s 261(d)
supplier can choose to refund, repair or
replace
Major failure or irremediable minor failure:
ACL pt 5-4 s259(3)(a) consumer can choose to
reject goods or terminate contract for
services; or (b) get compensation for lost
value
Interpretation cases
General rules
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Toll (fgct) pty ltd v alphapharm pty ltd. Reaffirmed l"estrange v graucob. signature= legal effect of reading and accepting contract regardless of if the party did so. Effect of signature cancels the need to give reasonable and sufficient notice of displayed and delivered terms on common law implied terms into certain definite classes of contracts when necessary to fill a gap. Sale of goods act 1895 (sa) ss 12 15 implied terms as to title, sale by description or sample, merchantable quality, fitness for purpose. Whether parties can exclude terms depends on each statute ebay international ag v creative. Australian consumer law s 3, pt 3-2 div 1, pt 5-4. Ele(cid:272)tro(cid:374)i(cid:272) a(cid:272)(cid:272)epta(cid:374)(cid:272)e. cli(cid:272)ki(cid:374)g (cid:858)i a(cid:272)(cid:272)ept(cid:859) or like buttons which link to ts&cs has same effect of signature. But terms must be accessible and cannot be vague guarantees businesses cannot exclude when contracting with consumers pt 3-2 div 1. Additional terms received by the customer after the purchase is completed not binding.
